SECRETARY OF LABOR,

	

 

Complainant,

	

 

v.

	

OSHRC DOCKET NO. 02-2175

VANDERVOORT’S DAIRY FOODS

COMPANY, and its successors,

	

 

Respondent.

	

 


APPEARANCES:


            For the Complainant:

C. Elizabeth Fahy, Esq., Madeleine Le, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas


            For the Respondent: 

                        Ellen L. Perlioni, Esq., Steven R. McCown, Esq.,
Littler Mendelson, Dallas, Texas


Before:            Administrative Law Judge: Sidney J. Goldstein


DECISION AND ORDER


            This proceeding arises under the Occupational Safety and
Health Act of 1970 (29 U.S.C. Section 651-678; hereafter called the “Act”).

            Respondent, Vandervoort’s Dairy Foods Company, and its
successors, (Vandervoort’s), at all times relevant to this action
maintained a place of business at 900 S. Main St., Fort Worth, Texas,
where it was engaged in the distribution of dairy products and fruit
drinks . Respondent admits it is an employer engaged in a business
affecting commerce and is subject to the requirements of the Act.

            On July 22, 2002, a Vandervoort’s employee, Julio Albarran,
was crushed in a “depalletizer” machine at Vandervoort’s Fort Worth
plant. Following the fatal accident, the Occupational Safety and Health
Administration (OSHA) conducted an inspection ofthe work site. As a
result of that inspection, Vandervoort’s was issued a citation alleging
violation of the standard at 29 C.F.R. §1910.147(c)(7)(i), together with
proposed penalties. By filing a timely notice of contest Vandervoort’s
brought this proceeding before the Occupational Safety and Health Review
Commission (Commission).

            On July 16, 2003 a hearing was held in Dallas, Texas. The
parties have submitted briefs on the issues and this matter is ready for
disposition.

Alleged Violations

            Serious citation 1, item 1 alleges:

29 CFR 1910.147(c)(7)(i):

The employer shall provide training to ensure that the purpose and
function of the energy control program are understood by employees and
that the knowledge and skills required for the safe application, usage
and removal of the energy controls are acquired by employees.

 

Location: Vandervoort’s Dairy/Milk Vault # 2, Product Receiving Dock

On or about July 22, 2002 an employee was fatally injured when he was
caught in the depalletizing equipment he was operating. It was
determined through observation and employee interview that a pallet got
jammed and the employee attempted to unjam the pallet. Though the LO/TO
procedures for the depalletizer was posted it did not address the issue
of the pallets getting stuck. The employee was not adequately trained in
the purpose and use of the company’s energy control procedure.

            Vandervoort’s maintains that the adjustment of product to
unjam the machine is not an operation covered by the standard. In the
alternative, Vandervoort’s argues that it provided the required level of
LO/TO training.

Facts

            The deceased, Julio Albarran, was an order picker at
Vandervoort’s (Tr. 27). On July 22, 2002, Albarran was stocking half
gallons using the depalletizer (Tr. 28). On that date another
Vandervoort’s employee, Gustavo Gonzales, found Albarran pinned between
the cases and a backstop located on the far side of the conveyor belt
(Tr. 30; Exh. C-1). The depalletizer was on and in automatic mode (Tr.
30-31).

            Gustavo Gonzalez testified that he had worked as an order
picker at Vandervoort’s for approximately two years (Tr. 15). During
that time, he operated the depalletizer, a machine used to offload
cartons of product from pallets (Tr. 16, 59; Exh. C-1). During
offloading, a pallet loaded with stacks of cartons is placed on the
depalletizer’s sliding platform. The platform then retracts, bringing
the pallet in front of the depalletizer’s pusher arm. The arm pushes the
product forward onto a conveyor belt, which carries the product, by
stacks, into Vandervoort’s vault (Tr. 60, 80; Exh. C-1). Gonzalez
testified that he was trained to run the depalletizer by another
employee, Hilario Reyes (Tr. 18). According to Gonzalez, Reyes told him
which buttons to push to run the machine (Tr. 18-20). Reyes never
specifically taught him about problems he might have with the
depalletizer (Tr. 18-19). However, he stated, during the course of his
training product would catch on the edge of a pallet and become jammed.
While the machine was still running in automatic mode, Reyes would stand
on a platform on the side of the machine and give the pallet a shake to
free the product (Tr. 21-24, 55). Once freed, the product would move
onto the conveyor chain (Tr. 25-26). Gonzalez testified that he learned
how to unjam the product by watching Reyes (Tr. 21, 25). Gonzales was
never told to turn off the machine before shaking the product loose from
the pallet (Tr. 26-27).

            During his initial orientation, Gonzalez was instructed in
the general provisions of Vandervoort’s lockout/tagout procedures (Tr.
32-34, 40-45; Exh. D-54, D-55, D-56, D-59). As part of the orientation,
Gonzalez completed a quiz in which he acknowledged that he was never to
place any part of his body into a moving piece of machinery (Tr. 35-37;
Exh. D-57). Gonzales was specifically instructed to “turn the pushers
off before trying to unjam them” and to “[n]ever put any part of your
body into the pusher while it is on.” (Tr. 46; Exh. D-56, ¶8).  

             Mark Hall, a stocker and receiving clerk with
Vandervoort’s, also operates the depalletizer (Tr. 58- 59). Hall
testified that product jams between the pusher and the lip of a pallet a
dozen or more times a day (Tr. 76-77). As a new employee, another
stocker trained him to turn off the depalletizer before removing jammed
product (Tr. 62-63). According to Hall, after turning the machine to
“manual”, he removes the pusher arm from the product, and deenergizes
the depalletizer by turning off all the power sources (Tr. 77, 87).
Specifically, Hall turns off an off/on switch on the front of the panel
and presses a button on the back of the panel that cuts off power to the
controls (Tr. 90). Hall testified that he then uses a hook to maneuver
the stacks of product onto the conveyor (Tr. 63, 77-78, 87).
Respondent’s Exhibit D-65 shows Hall inserting his hands and arms into
the stacks of product to maneuver the stacks with the hook (Exh. D-65).
Hall testified that he can see the depalletizer’s control panel from the
platform where he stands while manually adjusting stacks of product (Tr.
85-86). He stated that anyone walking up to the controls would be able
to see him (Tr. 86). The hook is only used when unjamming product from
plastic pallets, however (Tr. 64). When product is stuck on a wooden
pallet, Hall uses the same method as Gonzales to free the product. Hall
climbs up onto the platform and gives the product a shove with his hands
to free it from the pallet’s wooden slats (Tr. 64, 93, 95). The arm can
then push the product onto the conveyor (Tr. 64, 93). When unjamming
product from a wooden pallet, Hall leaves the machine in the automatic
mode (Tr. 93).

            Hall received training in general lockout/tagout procedures
during his initial orientation (Tr. 72-75; Exh. D-43, D-44, D-45). He
was never trained as an “authorized” employee.

            Gary Wyler, Vandervoort’s regulatory compliance manager (Tr.
143), and Louis Herrera, Vandervoort’s human resource manager (Tr. 99),
testified that Albarran received lockout/tagout training during his new
employee orientation (Tr. 109, 147-53; Exh. D-6, D-7, D-8, D-9). Herrera
testified that he and Albarran discussed Vandervoort’s employee
handbook, including the rule prohibiting employees from placing any part
of their bodies into a moving piece of machinery (Tr. 112, 119, D-13,
D-14). Herrera showed Albarran a safety video dealing, in part, with
lockout/tagout issues (Tr. 115-16; Exh. D-66). Wyler testified that he
conducted Albarran’s orientation training, and discussed with him the
purpose and use of Vandervoort’s lockout/tagout procedures (Tr. 154,
164). Albarran’s training file includes, /inter alia, /a signed document
in which Albarran indicated that he recognized Vandervoort’s rule
requiring him to turn the pusher off before trying to unjam it, and to
never put any part of his body into the pusher while it is on. (Tr. 149;
Exh. D-5). Albarran was out due to a non work-related injury during
Vandervoort’s annual training for “affected” employees, and so did not
receive refresher training in 2001 (Tr. 162-66; Exh. C-21). Wyler
admitted that Albarran was not trained as an “authorized” employee (Tr.
167). Wyler also stated that he did not personally show Albarran how to
run the depalletizer, and did not know if Albarran was ever trained in
the proper method of unjamming product from the machine (Tr. 166-67).

            James Randy Scaggs, the production supervisor at
Vandervoort’s, testified that employees get up on the depalletizer to
rock the cases to get them unhung “the way they were shown to do it.”
(Tr. 174). According to Scaggs, adjusting product stuck on a pallet was
a routine procedure (Tr. 177). However, Scaggs testified, there was no
reason for an employee to place his body in front of the pusher while
adjusting product. Doing so would have been a violation of Vandervoort’s
safety rules (Tr. 171, 177, 180).

            Vandervoort’s has lockout/tagout procedures for the
depalletizer (Exh. D-11). The procedures recognize that reenergizing the
depalletizer creates pinch points which may endanger employees servicing
the equipment, and sets out procedures for locking out the equipment.
The procedures require that affected employees be notified, the
depalletizer shut down, and the equipment isolated from its energy
source. The procedures require that all compressed air and hydraulic
pressure be bled down, and the absence of pressure verified. Maintenance
personnel are then to lockout and/or tagout the equipment using the
locks and tags assigned to them, and verify that the equipment has been
disconnected by pressing the start button (Exh. D-11).

/Discussion/

            The cited standard provides:

 

(7) /Training and communication. / (i) The employer shall provide
training to ensure that the purpose and function of the energy control
program are understood by employees and that the knowledge and skills
required for the safe application, usage and removal of the energy
controls are acquired by employees. The training shall include the
following:

 

(A) Each authorized employee shall receive training in the recognition
of applicable hazardous energy sources, the type and magnitude of the
energy available in the workplace, and the methods and means necessary
for energy isolation and control.

 

(B) Each affected employee shall receive training in the recognition of
applicable hazardous energy sources, the type and magnitude of the
energy available in the workplace, and the methods and means necessary
for energy isolation and control.

 

            In order to prove a violation of Section 5(a)(2) of the Act,
the Secretary must show by a preponderance of the evidence that: (1) the
standard applies to the conditions cited; (2) the terms of the standard
were not met; (3) employees had access to the violative condition; and
(4) the cited employer either knew or could have known of the condition
with the exercise of reasonable diligence. /See, e.g., Offshore
Shipbuilding, Inc./, 18 BNA OSHC 2170, 2171, 2000 CCH OSHD ¶32,137, p.
48,443 (No. 99-257, 2000).

            Applicability. 29 C.F.R. §1910.147 The control of hazardous
energy (lockout/tagout) covers the servicing and maintenance of machines
and equipment, including lubrication, cleaning, unjamming Footnote
<javascript:WPShow('WPFootnote1',%20WPFootnote1%20)> and/or making
adjustments or tool changes where employees may be exposed to the
unexpected energization or startup of the equipment or to the release of
hazardous stored energy. /See,/ 29 C.F.R. §1910.147(a), (b). The
lockout/tagout standard requires employers to “establish a program and
utilize procedures for affixing appropriate lockout devices or tagout
devices to energy isolating devices and to otherwise disable machines or
equipment to prevent unexpected energization, startup or release of
stored energy. . .” 29 C.F.R. §1910.147(c). The standard covers
servicing and/or maintenance which takes place during normal production
operations only if:

(A) An employee is required to remove or bypass a guard or other safety
device; or

(B) An employee is required to place any part of his or her body into an
area on a machine or piece of equipment where work is actually
performed. . .(point of operation) or where an associated danger zone
exists during a machine operating cycle.


            As noted above, Vandervoort’s argues that the adjustment of
product to unjam the depalletizer is not an operation covered by the
standard, as it neither requires the removal of a guard, nor requires
employees to place any part of their bodies into a danger zone created
by the machine’s operating cycle. In addition, Vandervoort’s argues, the
standard is inapplicable because operators unjamming the depalletizer
have a clear view of the depalletizer’s control panel, precluding any
unexpected activation.

            Employee exposure to the point of operation. The record
establishes that Vandervoort’s employees use two different methods to
unjam the depalletizer. It is not the practice of the depalletizer
operators to deenergize the equipment before attempting to shake product
loose from the slats of a wooden pallet, as that adjustment does not
require them to put any part of their bodies in an area where they might
be caught by the machine. When plastic pallets are jammed, however, the
evidence establishes that Vandervoort’s stocking clerks deenergize the
depalletizer and eliminate any residual energy by retracting the pusher
arm before manually unloading product jammed against the lip of the
pallet. It is clear from Vandervoort’s demonstration video that when
unloading manually with a hook, employees place their hands and arms in
the zone of danger created by the machine’s operating cycle. According
to employee Hall, jams occur perhaps a dozen times a day, requiring the
equipment’s operators to routinely deenergize the machine prior to
unloading product manually.

            Unexpected activation. Vandervoort’s maintains that
operators unjamming the depalletizer are in no danger from the
unexpected activation of the equipment, citing /General Motors Corp.,
Delco Chassis Division/, 17 BNA OSHC 1217, 1995 CCH OSHD ¶30,793 (Nos.
91-2973, 91-3116 & 91-3117, 1995) [multi-step procedure involving lights
and alarms prevented the /unexpected/ reactivation of the cited
equipment]. As noted by Respondent, once the depalletizer is turned off
for servicing, it cannot be reactivated unless another employee
deliberately turns on the power to the control panel, sets the machine
to automatic mode, and activates the pusher arm. An employee energizing
the control panel could not fail to see the operator unloading product
manually from the depalletizer. The safeguards required by the cited
standard are intended to protect employees /only/ from the unexpected
reactivation of equipment attributable to inadvertence. No
lockout/tagout procedures can protect employees from the deliberate and
malicious actions of another. The Secretary has not shown, by a
preponderance of the evidence, that Vandervoort’s depalletizer operators
are exposed to the danger of the depalletizer unexpectedly starting up
while manually unloading the depalletizer in the manner described in
this record. This record does not support the Secretary’s contention
that lockout/tagout procedures should have been employed by employees
unjamming the depalletizer in said manner. Because the evidence does not
establish that the cited standard was applicable to the described
operation, the alleged violation must be vacated.

            This judge recognizes that the decedent does not appear to
have been following the described procedures when he was caught in the
depalletizer. The depalletizer was not deenergized, and there is no
evidence that Mr. Albarran was using the hook. There is also evidence
that depalletizer operators may have received contradictory instructions
in the proper means of performing their jobs. While told in orientation
to turn off the depalletizer when unjamming the machine, it appears to
have been common practice to leave the machine in automatic while
shaking wooden pallets to unjam them. Such contradictory instructions
may confuse employees as to the proper means of avoiding hazards present
in their work. However, they do not constitute a violation of the
lockout/tagout standards where, as here, the evidence fails to establish
that employees performing the cited operations were exposed to the
hazard of unexpected reenergization.

 

 

ORDER

1.         Citation 1, item 1, alleging violation of 29 C.F.R.
§1910.147(c)(7)(i) is VACATED.

 

 

 

 

                                                                                     /s/


                                                                                    Sidney
J. Goldstein

                                                                                    Judge,
OSHRC


Dated: November 19, 2003